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S1049..........................................by COMMERCE AND HUMAN RESOURCES
ALCOHOL AND DRUG-FREE WORKPLACE - Amends existing law to extend the
application of the provisions of the Idaho Employer Alcohol and Drug-Free
Workplace Act to all employers; to limit application in certain circumstances;
and to provide that the state of Idaho or any political subdivision of the
state that conducts drug and alcohol testing of all employees and prospective
employees for whom such testing is not constitutionally prohibited, shall
qualify for and may be granted the employer premium reduction.
01/31 Senate intro - 1st rdg - to printing
02/03 Rpt prt - to Com/HuRes
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE SENATE
SENATE BILL NO. 1049
BY COMMERCE AND HUMAN RESOURCES COMMITTEE
1 AN ACT
2 RELATING TO THE IDAHO EMPLOYER ALCOHOL AND DRUG-FREE WORKPLACE ACT; AMENDING
3 THE HEADING FOR CHAPTER 17, TITLE 72, IDAHO CODE; AMENDING SECTION
4 72-1701, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING ONLY PRIVATE EMPLOY-
5 ERS; AMENDING SECTION 72-1702, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING
6 ONLY PRIVATE EMPLOYERS, TO PROVIDE THAT IT IS LAWFUL TO CONDUCT DRUG OR
7 ALCOHOL TESTING OF EMPLOYEES AND PROSPECTIVE EMPLOYEES UNDER CERTAIN CON-
8 DITIONS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTIONS 72-1703,
9 72-1704, 72-1705 AND 72-1706, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING
10 ONLY PRIVATE EMPLOYERS; AMENDING SECTION 72-1707, IDAHO CODE, TO REMOVE
11 LANGUAGE REFERENCING ONLY PRIVATE EMPLOYERS AND TO PROVIDE CORRECT TERMI-
12 NOLOGY; AMENDING SECTION 72-1708, IDAHO CODE, TO REMOVE LANGUAGE
13 REFERENCING ONLY PRIVATE EMPLOYERS AND TO RESTRICT APPLICATION OF THE SEC-
14 TION; AMENDING SECTIONS 72-1710 AND 72-1711, IDAHO CODE, TO REMOVE LAN-
15 GUAGE REFERENCING ONLY PRIVATE EMPLOYERS AND TO PROVIDE CORRECT TERMINOL-
16 OGY; AMENDING SECTION 72-1712, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING
17 ONLY PRIVATE EMPLOYERS AND TO MAKE A TECHNICAL CORRECTION; AMENDING SEC-
18 TION 72-1714, IDAHO CODE, TO REMOVE LANGUAGE REFERENCING ONLY PRIVATE
19 EMPLOYERS; AMENDING SECTION 72-1715, IDAHO CODE, TO LIMIT APPLICATION OF
20 THE SECTION; AND AMENDING SECTION 72-1716, IDAHO CODE, TO PROVIDE THAT
21 THE STATE OF IDAHO OR ANY POLITICAL SUBDIVISION OF THE STATE THAT CONDUCTS
22 DRUG AND ALCOHOL TESTING OF ALL EMPLOYEES AND PROSPECTIVE EMPLOYEES FOR
23 WHOM SUCH TESTING IS NOT CONSTITUTIONALLY PROHIBITED SHALL QUALIFY FOR AND
24 MAY BE GRANTED THE EMPLOYER PREMIUM REDUCTION.
25 Be It Enacted by the Legislature of the State of Idaho:
26 SECTION 1. That the Heading for Chapter 17, Title 72, Idaho Code, be, and
27 the same is hereby amended to read as follows:
28 CHAPTER 17
29 IDAHO PRIVATE EMPLOYER ALCOHOL AND DRUG-FREE WORKPLACE ACT
30 SECTION 2. That Section 72-1701, Idaho Code, be, and the same is hereby
31 amended to read as follows:
32 72-1701. PURPOSE AND INTENT OF ACT. (1) The purpose of this act is to
33 promote alcohol and drug-free workplaces and otherwise support private employ-
34 ers in their efforts to eliminate substance abuse in the workplace, and
35 thereby enhance workplace safety and increase productivity. This act estab-
36 lishes voluntary drug and alcohol testing guidelines for private employers
37 that, when complied with, will find an employee who tests positive for drugs
38 or alcohol at fault, and will constitute misconduct under the employment secu-
39 rity law as provided in section 72-1366, Idaho Code, thus resulting in the
40 denial of unemployment benefits.
41 (2) It is the further purpose of this act to promote alcohol and drug-
2
1 free workplaces in order that employers in this state be afforded the opportu-
2 nity to maximize their levels of productivity, enhance their competitive posi-
3 tions in the marketplace and reach their desired levels of success without
4 experiencing the cost delays and tragedies associated with work-related acci-
5 dents resulting from substance abuse by employees.
6 SECTION 3. That Section 72-1702, Idaho Code, be, and the same is hereby
7 amended to read as follows:
8 72-1702. TESTING FOR DRUGS AND/OR ALCOHOL. (1) It is lawful for an pri-
9 vate employer to test employees or prospective employees for the presence of
10 drugs or alcohol as a condition of hiring or continued employment, provided
11 the testing requirements and procedures are in compliance with 42 U.S.C. sec-
12 tion 12101 and are otherwise constitutionally permissible.
13 (2) Nothing herein prohibits an private employer from using the results
14 of a drug or alcohol test conducted by a third party including, but not lim-
15 ited to, law enforcement agencies, hospitals, etc., as the basis for determin-
16 ing whether an employee has committed misconduct.
17 (3) This act does not change the at-will status of any employee.
18 SECTION 4. That Section 72-1703, Idaho Code, be, and the same is hereby
19 amended to read as follows:
20 72-1703. COST OF TESTING OF CURRENT EMPLOYEES. (1) Any drug or alcohol
21 testing by an private employer of current employees shall be deemed work time
22 for purposes of compensation.
23 (2) All costs of drug and alcohol testing for current employees conducted
24 under the provisions of this act, unless otherwise specified in section
25 72-1706(2), Idaho Code, shall be paid by the private employer.
26 SECTION 5. That Section 72-1704, Idaho Code, be, and the same is hereby
27 amended to read as follows:
28 72-1704. REQUIREMENTS FOR SAMPLE COLLECTION AND TESTING. All sample col-
29 lection and testing for drugs and alcohol under this act shall be performed in
30 accordance with the following conditions:
31 (1) The collection of samples shall be performed under reasonable and
32 sanitary conditions;
33 (2) The private employer or private employer's agent who is responsible
34 for collecting the sample will be instructed as to the proper methods of col-
35 lection;
36 (3) Samples shall be collected and tested with due regard to the privacy
37 of the individual being tested and in a manner reasonably calculated to pre-
38 vent substitutions or interference with the collection or testing of reliable
39 samples;
40 (4) Sample collection shall be documented and the documentation proce-
41 dures shall include:
42 (a) Labeling of samples so as reasonably to preclude the possibility of
43 misidentification of the person tested in relation to the test result pro-
44 vided; and
45 (b) Handling of samples in accordance with reasonable chain-of-custody
46 and confidentiality procedures;
47 (5) Sample collection, storage and transportation to the place of testing
48 shall be performed so as reasonably to preclude the possibility of sample con-
49 tamination and/or adulteration;
3
1 (6) Sample testing shall conform to scientifically accepted analytical
2 methods and procedures;
3 (7) Drug testing shall include a confirmatory test before the result of
4 any test can be used as a basis for action by an private employer under sec-
5 tions 72-1707 and 72-1708, Idaho Code. A confirmatory test refers to the man-
6 datory second or additional test of the same sample that is conducted by a
7 laboratory utilizing a chromatographic technique such as gas chromatography-
8 mass spectrometry or another comparable reliable analytical method;
9 (8) Positive alcohol tests resulting from the use of an initial screen
10 saliva test, must include a confirmatory test that utilizes a different test-
11 ing methodology meant to demonstrate a higher degree of reliability;
12 (9) Positive alcohol tests resulting from the use of a breath test must
13 include a confirmatory breath test conducted no earlier than fifteen (15) min-
14 utes after the initial test; or the use of any other confirmatory test meant
15 to demonstrate a higher degree of reliability.
16 SECTION 6. That Section 72-1705, Idaho Code, be, and the same is hereby
17 amended to read as follows:
18 72-1705. PRIVATE EMPLOYER'S WRITTEN TESTING POLICY -- PURPOSES AND
19 REQUIREMENTS FOR COLLECTION AND TESTING. (1) An private employer must have a
20 written policy on drug and/or alcohol testing that is consistent with the
21 requirements of this act, including a statement that violation of the policy
22 may result in termination due to misconduct.
23 (2) An private employer will receive the full benefits of this act, even
24 if its drug and alcohol testing policy does not conform to all of the statu-
25 tory provisions, if it follows a drug or alcohol testing policy that was nego-
26 tiated with its employees' collective bargaining representative or that is
27 consistent with the terms of the collective bargaining agreement.
28 (3) Testing for the presence of drugs or alcohol by an private employer
29 shall be carried out within the terms of a written policy that has been commu-
30 nicated to affected employees, and is available for review by prospective
31 employees.
32 (4) The private employer must list the types of tests an employee may be
33 subject to in their written policy, which may include, but are not limited to,
34 the following:
35 (a) Baseline;
36 (b) Preemployment;
37 (c) Post-accident;
38 (d) Random;
39 (e) Return to duty;
40 (f) Follow-up;
41 (g) Reasonable suspicion.
42 SECTION 7. That Section 72-1706, Idaho Code, be, and the same is hereby
43 amended to read as follows:
44 72-1706. RIGHT OF EMPLOYEE OR PROSPECTIVE EMPLOYEE TO EXPLAIN POSITIVE
45 TEST RESULT AND REQUEST FOR RETEST. (1) Any employee or prospective employee
46 who tests positive for drugs or alcohol must be given written notice of that
47 test result, including the type of substance involved, by the private
48 employer. The employee must be given an opportunity to discuss and explain the
49 positive test result with a medical review officer or other qualified person.
50 (2) Any employee or prospective employee who has a positive test result
51 may request that the same sample be retested by a mutually agreed upon labo-
4
1 ratory. A request for retest must be done within seven (7) working days from
2 the date of the first confirmed positive test notification and may be paid for
3 by the employee or prospective employee requesting the test. If the retest
4 results in a negative test outcome, the private employer will reimburse the
5 cost of the retest, compensate the employee for his time if suspended without
6 pay, or if terminated solely because of the positive test, the employee shall
7 be reinstated with back pay.
8 SECTION 8. That Section 72-1707, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 72-1707. DISCHARGE FOR WORK-RELATED MISCONDUCT -- FAILURE OR REFUSAL OF
11 TESTING. An private employer establishes that an employee was discharged for
12 work-related misconduct, as provided in section 72-1366, Idaho Code, upon a
13 showing that the employer has complied with the requirements of this act chap-
14 ter and that the discharge was based on:
15 (1) A confirmed positive drug test or a positive alcohol test, as indi-
16 cated by a test result of not less than .02 blood alcohol content (BAC), but
17 greater than the level specified in the employer's substance abuse policy;
18 (2) The employee's refusal to provide a sample for testing; or
19 (3) The employee's alteration or attempt to alter a test sample by adding
20 a foreign substance for the purpose of making the sample more difficult to
21 analyze; or
22 (4) The employee's submission of a sample that is not his or her own.
23 SECTION 9. That Section 72-1708, Idaho Code, be, and the same is hereby
24 amended to read as follows:
25 72-1708. PRIVATE EMPLOYER'S DISCIPLINARY OR REHABILITATIVE ACTIONS BASED
26 ON TESTING -- CLAIMANT INELIGIBLE FOR BENEFITS. (1) Unless otherwise prohib-
27 ited, uUpon receipt of a confirmed positive drug or alcohol test result or
28 other proof which indicates a violation of an private employer's written pol-
29 icy, or upon the refusal of an employee to provide a test sample, or upon an
30 employee's alteration of or attempt to alter a test sample, an private
31 employer may use that test result or the employee's conduct as the basis for
32 disciplinary or refusal-to-hire action that will result in a claimant's ineli-
33 gibility to receive benefits under the provisions of section 72-1366(4), (5),
34 (6) or (7), Idaho Code. Actions by the private employer may include, but are
35 not limited to, the following:
36 (a) A requirement that the employee enroll in an private employer-
37 approved rehabilitation, treatment, or counseling program, which may
38 include additional drug or alcohol testing, as a condition of continued
39 employment;
40 (b) Suspension of the employee with or without pay for a period of time;
41 (c) Termination of the employee;
42 (d) Other disciplinary measures in conformance with the private
43 employer's usual procedures, including any collective bargaining agree-
44 ment.
45 (2) Action taken pursuant to this section shall not create any cause of
46 action against the private employer.
47 SECTION 10. That Section 72-1710, Idaho Code, be, and the same is hereby
48 amended to read as follows:
49 72-1710. LIMITATIONS OF EMPLOYER LIABILITY. (1) No cause of action
5
1 arises in favor of any person based upon the absence of an private employer
2 established program or policy of drug or alcohol testing in accordance with
3 this act chapter.
4 (2) No cause or action arises in favor of any person against an private
5 employer for any of the following:
6 (a) Failure to test for drugs or alcohol, or failure to test for a spe-
7 cific drug or other substance;
8 (b) Failure to test for, or if tested, a failure to detect, any specific
9 drug or other physical abnormality, problem or defect of any kind; or
10 (c) Termination or suspension of any drug or alcohol testing program or
11 policy.
12 SECTION 11. That Section 72-1711, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 72-1711. FALSE TEST RESULT -- PRESUMPTION AND LIMITATION OF DAMAGES IN
15 CLAIM AGAINST PRIVATE EMPLOYER. (1) No cause of action arises in favor of any
16 person against an private employer who has established a program of drug and
17 alcohol testing in accordance with this act chapter, and who has taken any
18 action based on its established substance abuse and/or disciplinary policies,
19 unless the private employer's action was based on a false test result, and the
20 private employer knew or clearly should have known that the result was in
21 error.
22 (2) In any claim where it is alleged that an private employer's action
23 was based on a false test result:
24 (a) There is a rebuttable presumption that the test result was valid if
25 the private employer complied with the provisions of section 72-1704,
26 Idaho Code;
27 (b) The private employer is not liable for monetary damages if his reli-
28 ance on a false test result was reasonable and in good faith; and
29 (c) There is no private employer liability for any action taken related
30 to a "false negative" drug or alcohol test.
31 SECTION 12. That Section 72-1712, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 72-1712. CONFIDENTIALITY OF INFORMATION. (1) All information, interviews,
34 reports, statements, memoranda or test results, written or otherwise, received
35 through a substance abuse testing program shall be kept confidential, and are
36 intended to be used only for an private employer's internal business use; or
37 in a proceeding related to any action taken by or against an private employer
38 under section 72-1707, 72,-1708 or 72-1711, Idaho Code, or other dispute
39 between the private employer and the employee or applicant; or as required to
40 be disclosed by the United States department of transportation law or regula-
41 tion or other federal law; or as required by service of legal process.
42 (2) The information described in subsection (1) of this section shall be
43 the property of the private employer.
44 (3) An private employer, laboratory, medical review officer, employee
45 assistance program, drug or alcohol rehabilitation program and their agents,
46 who receive or have access to information concerning test results shall keep
47 the information confidential, except as provided in subsection (4) of this
48 section.
49 (4) Nothing in this chapter prohibits an private employer from using
50 information concerning an employee or job applicant's substance abuse test
51 results in a lawful manner with respect to that employee or applicant as pro-
6
1 vided in chapter 2, title 44, Idaho Code.
2 SECTION 13. That Section 72-1714, Idaho Code, be, and the same is hereby
3 amended to read as follows:
4 72-1714. NO PHYSICIAN-PATIENT RELATIONSHIP CREATED. A physician-patient
5 relationship is not created between an employee or prospective employee, and
6 the private employer or any person performing a drug or alcohol test, solely
7 by the establishment of a drug or alcohol testing program in the workplace.
8 SECTION 14. That Section 72-1715, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 72-1715. PUBLIC ENTITIES MAY CONDUCT PROGRAMS. The state of Idaho and any
11 political subdivision thereof may conduct drug and alcohol testing of employ-
12 ees under the provisions of this chapter and as otherwise constitutionally
13 permitted.
14 SECTION 15. That Section 72-1716, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 72-1716. IMPLEMENTATION OF ALCOHOL AND DRUG-FREE WORKPLACE PROGRAM --
17 QUALIFICATION OF EMPLOYER PREMIUM REDUCTION. (1) For each policy of worker's
18 compensation insurance issued or renewed in the state on or after July 1,
19 1999, a reduction in the premium for the policy may be granted if the insurer
20 determines the insured has established and maintains an alcohol and drug-free
21 workplace program that complies with the requirements of sections 72-1701
22 through 72-1715, Idaho Code.
23 (2) The state of Idaho or any political subdivision thereof that conducts
24 drug and alcohol testing of all those employees and prospective employees for
25 whom such testing is not constitutionally prohibited shall qualify for, and
26 may be granted, the employer premium reduction set forth in subsection (1) of
27 this section.
STATEMENT OF PURPOSE
RS 12726
The purpose of this legislation is to expand the Idaho Drug-Free
Workplace Act to include public employers. It clarifies that all
employers, both public and private, may choose to have a Drug-Free
Workplace Program. It further establishes the components,
protections, and advantages afforded to all employers. Based upon
compliance with the Act, it provides for a reduction that may be
granted in the employer premium for each policy of workers
compensation insurance. This legislation also acknowledges that
public entities are limited by the restrictions of the U.S.
Constitution s Fourth Amendment.
FISCAL IMPACT
There is no fiscal impact.
Contact
Name: Senator Sheila A. Sorensen
Phone: 332-1319
STATEMENT OF PURPOSE/FISCAL NOTE S 1049